If the current situation in the Middle East continues to escalate, it is likely more people will be called into active military duty in the near future.  According to federal and state law, all employers, regardless of size or type, are required to give employees time off with job protection if they volunteer or are called into active military duty.  This month’s newsletter will answer some of the most commonly asked questions about military leave.

Q.  Who is eligible for leave?
A.  All full and part-time employees regardless of length of service with the employer.  The only employees that are not eligible for military leave are those working in brief nonrecurring positions that are not expected to last for a significant period of time.

Q.  What types of military service qualify for military leave?
A.  Absences to perform any duty (whether voluntary or involuntary) in a “uniformed service” are covered.  Absences for active duty are covered as well as absences for training, weekend drills, summer camp, fitness-for-duty examinations and funeral honors duty.  The “uniformed services” include:
· The full-time and reserve components of the Army, Navy, Marine Corps, Air Force, and Coast Guard;
· The National Guard (State National Guard duty is covered by state military leave law which provides time-off provisions similar to the USERRA);
· The commissioned corps of the Public Health Service; and
· Any other category of persons designated as a “uniformed service” by the President in time of war or national emergency.

Q.  How much leave may an employee take?
A.  An employee may take a cumulative total of 5 years of uniformed service while employed by the same employer.  Time spent in National Guard and reservist training and some involuntary extensions of service do not count towards the 5-year total.

Q.  Is military leave paid or unpaid?
A.  USERRA does not require pay during military leave except that exempt employees who work for the employer and perform military service in the same workweek must be paid for the entire workweek.

Q.  Can employers require employees to use vacation or other paid time off (PTO) during military leave?
A.  No.  An employee may elect to use vacation or PTO during military leave, but cannot be required to do so.  However, employers do not have to allow employees to use paid sick time during military leave.

Q.  Does an employer have to continue health benefits while the employee is on leave?
A.  USERRA gives employees on military leave a right to COBRA-like health benefit continuation, even if the employer is not covered by COBRA.  If an employee or his or her dependents loses health care coverage because of the employee’s military leave, the employee may elect to continue the coverage for up to 18 months at his or her own expense.
Premiums.  An employee who elects to continue coverage cannot be required to pay more than the normal employee share of any premium if the employee’s military service is 30 or fewer days.  If the employee’s service is 31 or more days, the employee cannot be required to pay more than 102% percent of the full premium for coverage.
Waiting periods, exclusions.  A health care plan may not impose exclusions or waiting periods on employees or their dependents upon reemployment after military leave except for service‑related injuries or illnesses.

Q.  Can an employer replace an employee who is on military leave?
A.  Employers are free to fill vacancies left by employees on military leave.  However, a returning service member is entitled to reemployment in accordance with the requirements of USERRA, regardless of whether another person is employed in the service member’s position.  The service member must be placed in the required position, even if it results in termination of the current jobholder.

Q.  When is a returning employee eligible for reemployment?
A.  A service member returning from military leave is entitled to reemployment with an employer if the following conditions are met:
· The person’s job before going on military leave was reasonably expected to continue for a significant length of time.  This can include positions designed as “temporary” that are expected to last a significant length of time.
· Advance written or oral notice of military service was given to the employer, unless giving of notice was impossible or unreasonable due to military necessity or other circumstances.
· The combined length of the person’s military service absences from the employer does not exceed 5 years (excluding exempt periods of service noted above).
· The person reported back to work or applied for reemployment within USERRA’s required time limits described below.
· The person was discharged from the military under honorable conditions.
· The person is qualified or can become qualified without undue hardship to the employer for a position within the requirements of USERRA described below.
· There was no change in the employer’s circumstances that would make reemployment impossible or unreasonable.

Q.  Are there any exceptions to the reemployment eligibility requirements?
A.  Only 2.
1. Reemployment is not required if the person’s position was eliminated while he or she was on military leave and he or she would have been terminated at that time.  However, reemployment would still be required if the person would have been placed in another job.
2. Reemployment is not required if the person incurs or aggravates a disability while on military leave and he or she cannot be reemployed without imposing an undue hardship on the employer.

Q.  How much notice must a returning employee give?
A.  Notice requirements vary depending on how long the employee was on leave.
· Service of 1 to 30 days/fitness examinations.  The employee must report for work by the beginning of the first regularly scheduled workday that falls 8 hours after the employee returns home.  If timely reporting is impossible or unreasonable through no fault of the employee, the employee must report to work as soon as possible.
· Service of 31 to 180 days.  The employee must submit an application for reemployment no later than 14 days after completion of military service.  If submission of a timely application is impossible or unreasonable through no fault of the employee, the application must be submitted as soon as possible.
· Service of 181 or more days. The employee must submit an application for employment no later than 90 after completion of military service.
The reporting and application deadlines must be extended up to 2 years for employees who are hospitalized or convalescing because of a service-connected injury or illness.  If timely reporting within the 2-year period is impossible or unreasonable due to circumstances beyond the employee’s control, the period must be extended by the minimum time required to accommodate the circumstances.
Although USERRA sets time limits for reporting to work and applying for reemployment, reemployment rights are not automatically lost if an employee fails to meet those limits.  However, the employee will be subject to the employer’s rules governing unexcused absences, which could, depending on the rules, result in termination.

Q.  How must an employer place a returning employee?
A.  Reinstatement rights are based on the length of a person’s military service.
Service of 90 or fewer days.  A person returning from military service lasting 90 or fewer days must be promptly reemployed in the job he or she would have held had he or she remained continuously employed.  This includes giving any promotions he or she would have received.  If the person is not qualified for the job and cannot become qualified through reasonable efforts of the employer, then he or she must be reemployed in the job held at the time he or she went on military leave.  If the person is not qualified and cannot become qualified for the job held prior to leave, then he or she must be placed into any other job for which he or she is qualified.
Service of 91 or more days.  Persons returning from military service lasting 91 or more days must be promptly reemployed in the job they would have held had they remained continuously employed or a position of equivalent seniority, status and pay.  This includes giving any promotions he or she would have received.  If the person is not qualified for the job and cannot become qualified through reasonable efforts of the employer, then he or she must be reemployed in the same or similar job as the one held at the time he or she went on military leave.  If the person is not qualified and cannot become qualified for the job held prior to leave, then he or she must be placed into any other job for which he or she is qualified.

Q.  What benefits must be restored upon reemployment?
A.  Reemployed persons are entitled to all benefits based on seniority that they would have attained had they remained continuously employed and time on military leave must be counted for vesting and benefit accrual purposes.  For example, an employee must receive any seniority or length of service based increases in accrual rates for vacation, PTO and paid sick time, pay raises and promotions he or she was reasonably certain to have achieved.
For retirement plans such as defined contribution plans, defined benefit plans and profit sharing plans, the period of military leave may not be treated as a break in service under the plan.  Upon reemployment, the employer must make any contributions it would have made on behalf of the employee during the military leave if the employee had continued working.  Further, the returning employee must be permitted to make up any employee contributions he or she would have made if he or she had remained continuously employed.

Q.  Can an employer terminate a reemployed person?
A.  An individual whose military leave was for less than 30 days is not protected from termination without cause after reemployment.  However, if an individual served in the military for 31 to 180 days, he or she may only be terminated for cause during the first 6 months of reemployment.  Likewise, if an individual served for 181 days or more, he or she may only be terminated for cause during the first year of reemployment.

These are just the core provisions of the federal military leave law.  If you have questions about the law or would like additional information, contact HRCentral today and ask for a copy of our white paper on military leave.